UMMER Vs. STATE OF KERALA

JUDGEMENT

(1.) Order dated 28.03.2018 passed by the Special-Judicial First Class Magistrate Court (N.I. Act cases), Kozhikode (for short, 'the court below’) in C.M.P. No. 1427 of 2018, is sought to be quashed in the proceedings on hand. Petitioner is accused in S.T. No. 2200 of 2016 filed by the second respondent before the court below under S. 142 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act').

(2.) C.M.P. No. 1427/2018 was dismissed by the court below mainly for two reasons as follows:

(3.) According to Sri. J.R. Prern Navaz, the learned counsel for the petitioner, the court below is perfectly unjustified in dismissing the application seeking to lift his immovable property from attachment. According to him, Sections 82 and 83 Cr.P.C. are not' of penal nature and meant only for procuring the presence of the petitioner before the court. Petitioner was never absconding or concealing himself for the purpose of avoiding execution of warrant issued against him. According to him, once the petitioner surrenders before the court and non-bailable warrant pending against him stands cancelled, he cannot be treated as an absconder. The learned counsel invited this Court's attention to sub-section (3) of S. 85 Cr.P.C. to contend that on moving a formal application, the properties under attachment or the sale proceeds thereof Will be released to the petitioner, whose properties have been attached. According to him, the courts are bound to consider the application filed under sub-section (3) of S. 85 Cr.P.C. on merits and the direction issued to approach the Government and to request for a release of the property, will amount to divesting the powers of the court. According to him, in the aforesaid circumstances Annexure A2 order dated 28.3.2018 in C.M.P. No. 1427/2018 in S.T. No. 2200/2016 passed by the Special Judicial First Class Magistrate (N.I. Act Cases), Kozhikode is liable to be quashed.